QBE Workers Compensation (Vic) Ltd v Freisleben & Nisselle; City of Bayside v Johns & Nisselle [1999] VSCA 207

2. These are two appeals, heard together, each against declaratory and injunctive orders of the Trial Division of the Supreme Court made on 3 June 1999. The respondents at whose instance the orders were made were workers who, having made claims under the WorkCover legislation against their employers for compensation for work-related personal injury, were disappointed with the result. The orders now the subject of appeal were obtained with a view to avoiding the effects of attempted references of questions to a Medical Panel during the pendency of proceedings the workers had taken in inferior courts in order to pursue their claims for compensation. The problem posed by the appeals is yet another arising from the apparently endless stream of ambiguity running through the enigmatic Accident Compensation Act 1985. In what follows I shall, where appropriate, call that statute, as amended from time to time, "the 1985 Act" with a view to distinguishing it from the several amending Acts to which I shall have to refer.

5. The respondent Ivan Freisleben was for most of the period from March 1971 to May 1998 a foundry operator employed by Holden Motor Overseas Corporation. He made various claims for compensation under the 1985 Act alleging injuries to his legs suffered over the course of his employment and particularly in March 1994 when a metal fragment allegedly penetrated his right leg. The respondent Trevor Maxwell Johns was from about 1976 to December 1997 a gardener employed by the City of Bayside. He claimed compensation for alleged injury to his back and legs sustained during the course of his employment and also in two particular incidents in 1986 and 1994.

8. Each of the claims was to some extent accepted and each worker received a measure of compensation by way of weekly payments. In the case of Mr Freisleben the employer's authorised insurer (a) after due notice terminated weekly payments from 27 October 1997; (b) by further notice dated 6 January 1998 rejected a claim for lump sum compensation and (c) on 29 June 1998 notified its decision to cease paying medical and like expenses. Each of these steps was the subject of an unsuccessful attempt at conciliation after which, on 3 September 1998, Freisleben commenced a proceeding in the Magistrates' Court against the employer. The relief sought included an order for weekly payments, a lump sum award pursuant to s.98 of the 1985 Act and compensation pursuant to s.98A of the 1985 Act "in respect of pain, suffering, distress and anxiety occasioned or to be occasioned by the injury" and an order for payment of medical and like expenses.

11. In the case of Mr Johns the employer's authorised insurer, by notice dated 31 October 1997, accepted a claim for lump sum compensation in respect of his back but rejected a claim in respect of his legs, asserting that the claimed injury to the legs did not arise out of or in the course of employment, that the employment was not a significant contributing factor to it and that he had not suffered any loss, damage, impairment or disfigurement within the meaning of s.98 of the 1985 Act. The claim, so far as it was rejected, was the subject of an unsuccessful attempt at conciliation after which, on 1 July 1998, Johns issued a proceeding in the County Court against his employer. The relief sought included compensation pursuant to s.98 of the 1985 Act for permanent partial impairment of the back and permanent partial loss of use of the legs; and compensation pursuant to s.98A for "pain distress and anxiety, resulting from, or likely to result from, the injuries (or the treatment thereof)". There was a directions hearing on 16 November 1998 and the proceeding was fixed for hearing on 22 March 1999.

14. After the proceedings had been commenced by Freisleben in the Magistrates' Court and by Johns in the County Court the authorised insurer of each defendant employer took steps individually to refer certain questions to a Medical Panel established in accordance with Division 3 of Part 3 of the 1985 Act (ss.63-68). The reference in each case was made in purported pursuance in particular of s.67(1), each of the questions referred being allegedly a "medical question" relating to the worker concerned within the meaning of that expression as defined in s.5(1).

17. In the case of Freisleben the reference was made by letter dated 24 December 1998 from the authorised insurer to the Convenor of the Medical Panels, Dr Paul Nisselle. The letter asked that a Medical Panel give its opinion on the questions before 18 February 1999, the date that had been fixed for hearing the case in the Magistrates' Court . By letter dated 13 January 1999 the worker's solicitors objected to the reference, and correspondence followed between them and the solicitors for the employer and the Convenor of the Medical Panels. The worker's solicitors sought a deferment of any medical examination by a Medical Panel until after the hearing in the Magistrates' Court, which was adjourned until 12 March 1999. The authorised insurer declined to agree to any deferment. After the worker failed to attend before the Medical Panel on 22 February 1999 the authorised insurer advised him by letter of 23 February that, because of his non-attendance on the previous day, his right to recover compensation pursuant to the 1985 Act was suspended pursuant to s.67(4).

20. In the case of Johns the reference to a Medical Panel was made on behalf of the authorised insurer by letter dated 5 January 1999 from the firm of solicitors acting for both for the employer and the authorised insurer to Dr Nisselle, as Convenor. The solicitors for the worker, having been informed of the reference by letter on the same day, claimed that it was inappropriate given that the County Court proceeding was on foot and that the case had been fixed for hearing. The solicitors for the employer and the authorised insurer responded by advising that if the worker did not attend before the Medical Panel they would seek instructions to invoke s.67(4).

23. Messrs Slater & Gordon, acting as solicitors for the worker in each case, on 26 March 1999 issued the two individual proceedings by way of originating motion in the Supreme Court which gave rise to the orders now the subject of appeal. In the case of Freisleben the defendants to the Supreme Court proceeding were Dr Nisselle (as Convenor of the Medical Panels) and QBE Workers Compensation (Vic.) Ltd., the authorised insurer of the employer; and in the case of Johns the defendants were Dr Nisselle (as Convenor) and the employer, City of Bayside. Despite the difference in the nature and capacity of the second defendant in the two cases, the relief eventually granted was the same in each. It was, in substance, a declaration that the attempted reference to a Medical Panel pursuant to s.67 of the 1985 Act was not authorised under that Act and was invalid, and injunctions in effect restraining the implementation of the reference and any further reference.

26. An appeal has been brought by the second defendant in each proceeding seeking that the judgment below be set aside and the proceeding dismissed. Dr Nisselle, the first defendant in each, is a respondent to each appeal and appeared by counsel who addressed no argument but indicated that his client would abide the result. Presumably the workers' proceedings in the Magistrates' Court and the County Court have been deferred in the meantime.

29. The central question posed upon the appeals is identical in each, as it was in each proceeding below. It is, simply, whether at the relevant time s.67(1) of the 1985 Act empowered the authorised insurer to refer medical questions to a Medical Panel. The question, which the learned primary judge answered in the negative, depends for its resolution entirely on an interpretation of that provision in the context of the 1985 Act as a whole. Section 67 has been amended several times, most recently by s.22(a) of Act 81 of 1998, which came into operation at 4 p.m. on 30 June 1999 - and thus too late to be of present relevance. At the time when, relevantly to these appeals, the authorised insurers purported to invoke s.67(1), it had last been amended by s.32(1) of Act 50 of 1994. That, therefore, is the latest time at which s.67(1) is now to be examined. At that time s.67(1) stated the function of a Medical Panel to be "... to give its opinion on any medical question ... referred by a Conciliation Officer or the County Court or the [Victorian Workcover] Authority, authorised insurer or a self-insurer." The appellants naturally relied, and still rely, on that provision, so framed, as carrying by implication their entitlement as authorised insurers to refer medical questions on which it is the function of a Medical Panel to give its opinion. It is common ground that the appeals should succeed if s.67(1) does carry the implication contended for, but fail if it does not, for there neither is nor was any other such entitlement on the part of an authorised insurer expressed or to be implied in the 1985 Act.

32. It is as well, before turning to the terms of s.67, as it stood when the appellants purported to resort to it, to examine its history and to give it a context. As originally enacted the 1985 Act established the Accident Compensation Commission, a cardinal function of which was to pay compensation to persons entitled to it under the 1985 Act. It also established the Accident Compensation Tribunal, whose functions included the hearing and determination of "any question or matter ... with respect to claims for compensation under the Workers Compensation Act 1958 or this Act...": s.40(1)(a)(iii). Act 64 of 1989 established for the purpose of the 1985 Act the WorkCare Appeals Board, whose function was to review decisions of the Commission and of self-insurers. The system of medical panels was established by Division 3 of Part 3 of the 1985 Act (then ss.72-72M) as inserted by Act 64 of 1989. Section 72E prescribed as the function of a Medical Panel "to give its opinion on any medical question referred by the [WorkCare] Appeals Board or the [Accident Compensation]Tribunal"; and ss.72F and 72G respectively conferred and imposed on a Medical Panel corresponding powers and obligations. The County Court and the Magistrates' Court then had no jurisdiction under the 1985 Act and the concept of an "authorised insurer" within that Act did not then exist. Very extensive further amendments to the 1985 Act were made by the Accident Compensation (WorkCover) Act 1992 (Act 67 of 1992) which produced, among others, the following consequences:

(a) The Accident Compensation Commission was abolished and (in substance) the Victorian WorkCover Authority was established in its place.

(b) The Accident Compensation Tribunal was abolished and some of its functions were assumed by the Administrative Appeals Tribunal.

(c) The WorkCare Appeals Board was abolished.

(d) Provision was made for the appointment of conciliation officers.

(e) A new Part 3 of the 1985 Act was inserted (ss.39-68) which, by s.39, conferred jurisdiction on the County Court to hear and determine "any question or matter" arising (so far as is now relevant) out of any decision of the Victorian WorkCover Authority or a self-insurer or any recommendation or direction of a conciliation officer; and by s.43 conferred on the Magistrates' Court (in effect) jurisdiction with a limit of $25,000 (later increased to $40,000) in cases in which the County Court had jurisdiction. By virtue of s.43(3), a reference in the 1985 Act to the County Court applies to the Magistrates' Court when exercising jurisdiction under Part 3 .

(f) Section 67 (inserted in Division 3 of the new Part 3) re-stated in subs.(1) the function of a Medical Panel to be "... to give its opinion on any medical question referred by a Conciliation Officer or the County Court or the [Victorian WorkCover] Authority or a self-insurer." Subsection (2) of s.67 empowered a Conciliation Officer or the County Court (and thus the Magistrates' Court) or the Authority to require a worker who claimed or was receiving compensation to submit to a Medical Panel for examination; and s.67(4) provided for suspension of the worker's rights to compensation in the event of an unreasonable refusal to comply with the requirement.

(g) Section 45(1) (inserted in Division 1 of the new Part 3) provided by para.(a) that the County Court (and by virtue of s.43(3) the Magistrates' Court) might, and by para.(b) that it should if a party before it so requested, refer a medical question to a Medical Panel for an opinion; and para.(c) required that "the opinion of the Panel on that question shall, subject to this section, be adopted by the Court as the answer to that question."

(h) Specific provision was made for the reference of a medical question by a Conciliation Officer (s.56(6)) and by the Administrative Appeals Tribunal (s.99AB(1)(a)) for an opinion by a Medical Panel. Section 56(7) and s.99AB(1)(c) respectively provided, in effect, that a Medical Panel's opinion on a question so referred should be conclusive. (Notwithstanding the references in s.67(1) to "the Authority" and "a self-insurer", there was no specific provision made by the 1992 amendments of the 1985 Act for reference of a medical question to a Medical Panel by the Victorian WorkCover Authority or by a self-insurer; and, no specific statutory provision was made for a reference of a medical question to a Medical Panel by either the Victorian WorkCover Authority or a self-insurer until much later: s.93CD(4)(b) and s.104B(9), as respectively inserted in the 1985 Act by ss. 29 and 43 of Act 107 of 1997.)

38. The concept of an "authorised insurer" was created for the 1985 Act by Part 3 of the Accident Compensation (WorkCover Insurance) Act 1993 - Act 50 of 1993. By means of s.78(1)(c) of the 1993 Act there was inserted throughout the 1985 Act, by way of consequential amendments, after the word "Authority" wherever occurring in some scores of enumerated provisions, the expression "authorised insurer". That had the effect of inserting the expression into subss.(1), (2) and (3) of s.67, so that (among other things) the function of a Medical Panel was thenceforth stated by s.67(1) to be to give its opinion on any medical question, etc., "... referred by a Conciliation Officer or the County Court or the [Victorian WorkCare] Authority, authorised insurer or a self-insurer." The words I have italicised provided the genesis of the ticklish question with which these appeals are concerned, although their insertion into s.67(1) survived only from 30 June 1993 until 30 June 1999 when, by force of Act 81 of 1998, the continuing concept of an "authorised insurer" ceased. Thus, although the central question now posed can arise only in respect of purported references by an authorised insurer to a Medical Panel made before 4 p.m. on 30 June 1999, it presumably remains a live question in respect of all such references made up to that time.

41. Section 21(5) of Act 107 of 1997 repealed and replaced s.45(1) of the 1985 Act. Para.(a) of subs.(1) of the old s.45 was re-enacted unchanged but a new para.(b) arguably removed a measure of the County Court's discretion by providing that, if a party to a proceeding should request that a medical question or questions be referred to a Medical Panel, "that question or questions" (rather than "a medical question", as formerly) is or are to be referred. In replacement of subs.(1)(c) of s.45 and s.56(7) (but not s.99AB(1)(c)) s.21(4) of the 1997 Act inserted subs.(4) into s.68 of the 1985 Act as follows, with effect from 23 December 1997-

"For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

45. Before the insertion of s.68(4) of the 1985 Act in 1997 the question whether s.67(1) empowered an authorised insurer to refer a medical question to a Medical Panel was not of any substantially practical importance: the opinion of a Medical Panel on any such reference, assuming a reference to have been attempted by an authorised insurer, could have had no binding force: cf. the effect of an opinion of a Medical Panel upon a reference by a conciliation officer (s.56(7)) or by the County Court or the Magistrates' Court (s.45(1)(c) and s.43(3)). Nor, until the enactment of s.68(4), did an opinion of a Medical Panel on a medical question referred by the Victorian WorkCover Authority or a self-insurer have binding force. The question of the power of authorised insurers to refer a medical question to a Medical Panel has evidently assumed present importance in the light of s.68(4) because, in the cases the subject of the present appeals, an attempt has been made to exercise such a power during the pendency of curial proceedings .

48. The appellants rely on the circumstance that when, by force of Act 67 of 1992, the Victorian WorkCover Authority and self-insurers were included among those to whom, by virtue of s.67(1) of the 1985 Act, it became the function of a Medical Panel to give its opinion, there was no specific provision in the 1985 Act for the reference of a medical question by either the Authority or a self-insurer. No such specific provision appeared with respect to the Authority until the enactment of s. 50 of Act 50 of 1994 resulted in the insertion of a new s.104 in the 1985 Act; and in 1997 by ss.93CD(4)(b) and 104B(9) specific power to refer a medical question was conferred, and indeed in certain circumstances an obligation to do so was imposed, on the Authority and a self-insurer. It is said to follow that s.67(1), when enacted in 1992, could not have been a merely machinery or facilitative provision enabling a reference to a Medical Panel only where the 1985 Act otherwise empowered it. The submission for the appellants is that the subsection can be seen to have contained an implied grant of power to the Authority and self-insurers to refer medical questions to a Medical Panel: were it not so the references in s.67(1) to the Authority and to a self-insurer would have been ineffectual.

51. The answering contention is that s.67(1) does not by itself confer any power to refer a medical question: it does no more than specify the function of a Medical Panel when a medical question is referred pursuant to an identifiable specific power for a discernible purpose. Counsel for the respondents referred to the identifiable specific powers to refer medical questions that were contained in the 1985 Act by force of the 1992 amendments and thereby conferred on conciliation officers (s.56(6)), on the County Court and the Magistrates' Court (ss.45(1)(a) and 43(3)) and on the Administrative Appeals Tribunal (s.99AB)(1)(a)). The purposes for which those powers to refer medical questions were specifically conferred were said also to be discernible: to assist in the resolution of a dispute either by conciliation or by determination of a proceeding between the parties to that dispute as to which the County Court or the Magistrates' Court or the Administrative Appeals Tribunal had jurisdiction by virtue of the 1985 Act. The parties to such a dispute might be (a) in the case of a conciliation conference, any of the possible disputants referred to in s.53 of the 1985 Act including the Authority, a self-insurer and, after the commencement of Act 50 of 1993, authorised insurers or (b), in the case of a proceeding before a Court or the Tribunal, any of the possible disputants referred to in or identifiable from s.39 or s.99A of the 1985 Act, as the case may be, including the Authority and a self-insurer and, again, after the commencement of Act 50 of 1993, authorised insurers. It was never appropriate or even sensible, and indeed it was pointless, so it was submitted for the respondents, to confer a general or omnibus power on the Authority, a self-insurer or an authorised insurer to refer a medical question of its own motion. The ability to refer a medical question should be confined, as it was submitted, to the court, body or person, acting alone or at the request of a party into whose hands the resolution of a dispute was committed by the 1985 Act.

54. Each of these opposing contentions has its difficulties. To treat subs.(1) of s.67 as conferring a power on an authorised insurer to refer medical questions to a Medical Panel would require the acknowledgment of some curious anomalies; and yet to deny that the sub-section confers the power may require an attribution to the legislature of some error or misapprehension. The learned primary judge, in seeking to fathom the intention of s.67(1), posed for himself the question whether an authorised insurer or self-insurer is empowered by that provision to refer a medical question to a Medical Panel, when it is a party to proceedings before the County Court or Magistrates' Court, without referring the question to the court seized of the matter. His Honour was not prepared to accept an argument which would regard the legislature as having "... intended that one party in litigation should have a right to bypass the court and have questions, which are properly before the court, determined by another body without the opposing party having any say in the matter." His Honour added that "The argument is even more remarkable when one considers that the court and the opposing party must accept the opinion and act upon it." These observations, if I may respectfully say so, have force. In each of the two instances now in question, however, the authorised insurer, when purporting to refer questions to a Medical Panel, was not a party to the proceeding before the court whose function as a court the purported reference was calculated to supersede or overwhelm. That circumstance is even more startling to my mind than those envisaged by the judge. I should not be willing, in the absence of necessity, to attribute to the legislature an intention to confer a power capable of producing such a startlingly bizarre result.

57. Section 67(1) does not expressly confer any power on an authorised insurer and, so far as I can see, there is no necessity to treat the provision as doing so by implication. Equally, I would not accept the argument that it was necessary in 1992 to imply a right of the Authority or any self-insurer at any time to refer a question to a Medical Panel just because of the terms in which s.67(1) was enacted in 1992. There was and there is certainly no necessity to imply a right of an authorised insurer to refer a question to a Medical Panel at any time of the authorised insurer's choosing. If there were, which or what authorised insurer might be supposed to have such a right? Surely it could not be any authorised insurer within the meaning of the 1985 Act? Looking at the matter realistically and conscientiously one should suppose that, if the legislature intended to confer on an authorised insurer a right to refer any medical question, it would be only a medical question arising in the course of a proceeding or procedure that was designed to resolve a dispute to which the authorised insurer was a party. By the same token it is sensible to suppose that the legislature in 1992 intended at most to confer a right on the Authority to refer a medical question to a Medical Panel when it found itself as a party to a dispute on which an answer to the question might bear, and similarly in the case of a self-insurer. So much is disclosed, in my opinion, by reference to the purpose to which the 1985 Act contemplates that the opinion of a Medical Panel is to be put. The opinion is only made useful, so far as I can see, insofar as it is binding for the purpose of a proceeding in a court or before the Administrative Appeals Tribunal or else a conciliation conference over which a conciliation officer presides. Before the enactment of s.68(4), ss.45(1)(c) and 99AB(1)(c) required that the opinion of a Medical Panel on a question referred by the court or the Tribunal, as the case might be, should be adopted by the court or the Tribunal. That necessarily meant that the opinion should bind only the parties before the court or the Tribunal; and s.56(7) required that the opinion should be accepted by the parties to the dispute the subject of conciliation. It might accordingly be thought perhaps that, in a proceeding in which an authorised insurer was a party, there might be some point in treating s.67(1) as conferring on that authorised insurer a right to refer a relevant medical question, but not otherwise. It is not necessary, however, to grapple with that question for it is at present hypothetical. After the enactment of s.68(4) the binding nature of an opinion of a Medical Panel on a medical question that had been referred by the Administrative Appeals Tribunal was apparently unchanged; but otherwise an opinion of a Medical Panel on a question, by whomsoever referred to it, was to be adopted and applied and accepted as final and conclusive "[F]or the purposes of determining any question or matter ...". Again, therefore, so far at least as a proceeding before a court is concerned, the binding quality of an opinion of a Medical Panel is confined to the court and the parties to the proceeding in which the question or matter falls for determination.

60. The 1993 amendment of s.67(1), by which the expression "authorised insurer" was inserted, prompts further comment. Other things being equal, the submission for the appellants that the sub-section carries the implication for which they contend might have weight. I feel obliged nevertheless to reject it. The profusion and the nature of the amendments to the 1985 Act since it was first enacted have rendered the legislation notoriously troublesome to interpret and presumably burdensome to administer. The cost to the community of both the interpretation of the legislation in the courts and its administration beyond them has almost certainly been immense. I refer not only to the incidence of lawyers' fees and the vast application of judicial time in litigation devoted, as in the current appeals, to statutory interpretation: there is also the enormous expenditure in the preparation by way of drafting, publishing, promulgation and implementation of this torrent of statutory law, some of which is remarkably short-lived and falls to be re-made, and re-made. It may not be fashionable in the contemporary climate of our parliamentary democracy to speak of an abuse of legislative power. I believe that it is, however, fair to comment that a proportion of the torrent of legislation in recent years bears hallmarks of having been ill-considered. I speak not of its policy but of its want of clarity and certainty to the point of its requiring, as a matter of routine, interpretation in the courts and then amendment after amendment and yet further amendment. One is drawn to Shelley's lines -

"Man's yesterday may n'er be like his morrow; Nought may endure but Mutability."

The community is of course expected not only to accept and live by these legal mutations but unfortunately, when they are ill-considered, to bear what is sometimes the unnecessary cost of their enactment, and then the cost of their interpretation, of their amendment and, sometimes of their continuing amendment. This is a case in point, and the history is unpropitious. The Accident Compensation Act 1985 has over the years presumably presented its challenges to those responsible for its drafting and re-drafting, given especially the manner and the pace at which they are driven, as the 1992 and 1993 amendments exemplify. In 1992 the new s.67(1) was, it might be thought, not altogether harmonious with all other provisions of the 1985 Act. At all events s.99AB(1)(a), which empowered the Administrative Appeals Tribunal to refer a medical question to a Medical Panel for an opinion, logically dictated that s.67(1) should list the Tribunal among those to whom or to which it was the function of a Medical Panel to give its opinion. Noticeably, the Tribunal was omitted from the catalogue, presumably by oversight. Correspondingly, the manner of the insertion of "authorised insurer" into s.67(1) in 1993, as one of a host of other provisions, after "the Authority", with the benefit of neither definite nor indefinite article, rather suggests that it might have been a product of "drafting by computer", without scrupulous consideration for particularity. Bearing in mind this and the whole eventful history of the drafting of the 1985 Act, I should not necessarily be prepared to bring to s.67(1) all of all the usual canons of statutory construction. It is true enough that the general presumption is that "...words are used in an Act of Parliament correctly and exactly and not loosely and inexactly...": Spillers Ltd. v Cardiff Assessment Committee [1931] 2 K.B.21, at 43, per Lord Hewart, C.J. This is not to require an assumption, however, that those who draft statutes, especially complicated consequential amendments, are infallible. The reports contain many examples of cases in which the courts have declined to hold that the a consequential amendment of a statute could have intended a result that a literal reading would produce, and have construed it accordingly. To cite a string of examples would be unproductive, for each depends more or less on its own circumstances. I refer, as an instructive instance of a practical approach, to Ye Olde Cheshire Cheese Ltd. v Daily Telegraph plc [1988] 3 All E.R. 217, esp. at 223, per Sir Nicholas Browne-Wilkinson, V-C.; and see Bennion, Statutory Interpretation, 2nd ed., 195-8 and the most instructive Part XXI, Construction against `absurdity', (pp.679-710) passim. It seems to me to be as probable as not that the insertion into the subsection of "authorised insurer" was done somewhat mechanically and, it may be, inartificially. That fortifies my inclination not to feel obliged to give it the kind of implication that the appellants seek to attribute to it.

65. The foregoing analysis leads me to the view that an opinion of a Medical Panel on a medical question referred by an authorised insurer (at all events if not a party to some kind of proceeding or conciliation procedure provided for by the 1985 Act) is, as it were, writ in water: it leads nowhere, signifying nothing. I should therefore be unwilling to ascribe to the legislature by the enactment of s.67(1) of the 1985 Act an intention impliedly to empower an authorised insurer, not being such a party, to make a reference to a Medical Panel.

68. I therefore propose that the appeals be dismissed.

73. I agree that these two appeals should be dismissed. Tadgell, J.A. has set out the facts leading to the proceedings in the Trial Division and the history of the legislation and so I am able to state my reasons more shortly than otherwise.

76. First, as argued the resolution of these appeals depends wholly upon whether an authorised insurer had the power to refer medical questions to a medical panel for determination under the Accident Compensation Act 1985 as it stood at the time when the reference was supposedly made; that is, in the case of Freisleben, in December 1998 and, in the case of Johns, in January 1999. In both cases the authorised insurer purported to refer medical questions to a medical panel for opinion while a hearing was awaited of a proceeding in court which the worker had commenced to recover compensation which he was claiming and the authorised insurer had refused. Freisleben had had his weekly payments terminated, his claim for lump-sum compensation rejected and payment of his medical and like expenses stopped and he had commenced a proceeding in the Magistrates' Court on 3 September 1998, after the necessary but unsuccessful attempt at conciliation. Johns whose claim for compensation for work-related injury, though in part accepted, was in part rejected by the authorised insurer, had also attempted conciliation unsuccessfully and he had commenced a proceeding in the County Court on 1 July 1998, a hearing of which was fixed for 22 March 1999.

79. Put more broadly, in both the cases under appeal the conduct of the authorised insurer in making the relevant reference of medical questions fell to be adjudged against the Act as it stood before the amendments made by Act No.81 of 1998 (the relevant amendment coming into operation on 30 June 1999) but after the amendments made by Act No.107 of 1997 (which, so far as relevant, came into operation on 23 December 1997 and which I shall call simply "the 1997 amendments"). Accordingly, the most convenient reprint of the 1985 Act for present purposes is Reprint No.8, a reprint as at 1 January 1998.

83. Under the Act as it stood at the relevant time medical panels, which were established under Division 3 of Part 3, had the function described in s.67(1). That read:-

"(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment before, on or after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992 referred by a Conciliation Officer or the County Court or the Authority, authorised insurer or a self-insurer."

A reference to the County Court was a reference, too, to the Magistrates' Court when exercising jurisdiction under s.43: s.43(3).

88. By s.67(1A), a medical panel was required to give its opinion on a medical question "in accordance with this Division". By s.65(5) a medical panel could ask a worker to meet with the panel and answer questions and by s.67(2), if a worker claimed compensation or was in receipt of weekly payments of compensation, "a Conciliation Officer, the County Court, the Authority, authorised insurer or a self-insurer" could require the worker to submit to examination by a medical panel. If the worker unreasonably refused to comply with s.65(5) or hindered the examination, his or her rights to compensation or to weekly payments were thereupon suspended "until the examination has taken place": s.67(4). In the case of Freisleben, the authorised insurer relied upon that suspension: in the case of Jones, suspension was threatened.

91. Section 68 is as important as s.67. That section commenced:-

"(1) A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority, authorised insurer or self-insurer."

By s.68(2) the medical panel to whom a medical question was referred, must give "a certificate as to its opinion" and, by s.68(3) must give "its opinion in writing" to "the relevant Conciliation Officer or the County Court or the Authority, authorised insurer or self-insurer". It is unnecessary for present purposes to reconcile the references in sub-s.(2) to "a certificate" and in sub-s.(3) to "its opinion in writing": contrast s.48(1) which makes admissible in evidence in any proceedings "a certificate or report given by a Medical Panel". What is important for present purposes is that s.67 referred - and referred more than once - to "a Conciliation Officer or the County Court or the Authority, authorised insurer or a self-insurer" and s.68 correspondingly referred - twice - to "the Conciliation Officer, the County Court, the Authority, authorised insurer or self-insurer". It was these references, particularly in s.67(1), which founded the appellants' argument that, by necessary implication, an authorised insurer must have had the power to refer any "medical question" (a term defined in s.5) to a medical panel for opinion. Otherwise, it was said, the references in ss.67 and 68 to an "authorised insurer" must have been futile, or largely futile.

96. It is necessary to qualify the submission by adding "largely" because under the Act as it stood after the amendments made by Act No.107 of 1997 there was no need to have resort to implication from the terms of s.67 in order to discover a relevant power in an authorised insurer to refer medical questions to a medical panel for opinion. After the 1997 amendments, such a power could be found elsewhere in the Act. Under s.45(1) (as substituted by s.21(5) of Act No.107 of 1997, and indeed in its previous form), the County Court, when exercising jurisdiction was expressly empowered to refer a medical question to a medical panel for opinion: indeed it was required to refer the medical question to a medical panel, if a party to the proceedings so requested. Under s.56(6) (another subsection substituted by s.21 of Act No. 107 of 1997, though again in a form not very different from its immediate predecessor), a conciliation officer was expressly empowered to refer a medical question to a medical panel for opinion. By sub-s.(4)(b) of s.93CD (a new provision inserted into the Act by s.29 of Act No.107 of 1997), the Authority or self-insurer was precluded from refusing to make a determination about the worker's entitlement to weekly payments on a certain ground unless the Authority or self-insurer had first referred a particular medical question to a medical panel for opinion. Under sub-s.(9) of s.104B (yet another new provision inserted by Act No.107 of 1997), in certain circumstances when a dispute concerning an assessment of or entitlement to compensation arose, "the Authority, authorised insurer or self-insurer" was required to refer certain medical questions to a medical panel for opinion under s.67.

99. Thus, under the Act as it stood after the 1997 amendments, there were express provisions contained within the statute authorising, or in some cases requiring, each of these, "a Conciliation Officer, the County Court, the Authority, authorised insurer or a self-insurer", to refer medical questions to a medical panel in certain circumstances. That is enough to explain and to justify the references made to each of those bodies or persons in s.67(1) (and correspondingly in s.68(1)) and there is no need to have resort to necessary implication from s.67 in order to supply a supposed deficiency. The appellants' submission was that, when regard was had to s.67(1), it could be seen that there was a lacuna in the Act with respect to the power of "the Authority, authorised insurer or self-insurer" to refer medical questions to a medical panel. But there was no such lacuna: relevant power was conferred otherwise. Certainly such power as was conferred was limited - and, as the appellants plainly recognised, the limited power conferred on an authorised insurer by s.104B(9) was of no help to the authorised insurers in these two cases. But power there was, and so the appellant's argument that something more was necessarily to be implied in order to make sense of s.67(1) failed.

102. It follows from this that, subject to what follows, these appeals must fail: the decision below was correct, that the authorised insurers did not have the power to refer medical questions to a medical panel in the circumstances disclosed in these proceedings.

The argument based on the earlier legislation

106. The appellants, however, perhaps in recognition of the difficulties facing them if attention is paid only to the Act after the 1997 amendments, rested their argument mainly on the state of the legislation before the 1997 amendments (when arguably there was the sort of lacuna that might have justified some necessary implication of power in an authorised insurer to refer medical questions to a panel), having then to contend that the 1997 amendments did not detract from that "necessary implication". For myself, I doubt that such a line of argument is legitimate, depending as it does upon what is said to be a necessary implication from the state of the Act, not as it stands at a relevant time, but as it used to stand; but I pass that by. For it seems to me that the appellants' argument still fails, and on at least two counts.

109. Medical panels were first introduced into the Accident Compensation Act by Act No. 64 of 1989, when the general scheme was still known as WorkCare and the Accident Compensation Tribunal was still there. The amendments made by Act No.64 of 1989 included a wholly new Part III, Division 2 of which created a new WorkCare Appeals Board and Division 3 established medical panels. A new s. 72E provided quite simply that the function of a medical panel "is to give its opinion on any medical question referred by the Appeals Board or the Tribunal". The Appeals Board was given expressly the power to refer questions to a medical panel (by s.71I(19)), and so was the Tribunal (s.60(1)(a)). We were told, however, that little use was made of medical panels under this legislation and whether or not that was so enormous changes were made by Act No. No.67 of 1992 when WorkCare was replaced by WorkCover.

112. By Act No. 67 of 1992 ("the 1992 amendments") the Accident Compensation Commission was replaced by the Victorian WorkCover Authority and the Accident Compensation Tribunal was abolished, its jurisdiction and powers being distributed between the County Court, the Magistrates' Court and the Administrative Appeals Tribunal. Medical panels were retained, but s.67(1) was enacted to redescribe their function thus:-

"(1) The function of a Medical Panel is to give its opinion on any medical question referred by a Conciliation Officer or the County Court or the Authority or a self-insurer."

Reference to an authorised insurer was added later, by s.78(1)(c) of Act No.50 of 1993 (which introduced the concept of an authorised insurer generally into this legislation) and the qualifying expression concerning injuries (commencing "in respect of injuries" and ending "Act 1992") was introduced by Act No.50 of 1994 s.32(1).

117. The point made by the appellants was that in 1992, and for some years thereafter, there was no express provision conferring power on the Authority or on a self-insurer - or from 1993 on an authorised insurer - to refer a medical question to a medical panel, so that that power had to be implied under the Act as it stood then. That implication was necessary, it was contended, in order to make sense of the references in s.67(1) to the Authority, authorised insurer and self-insurer, references which otherwise must have been otiose. The 1992 amendments conferred power expressly upon the County Court (and thus upon the Magistrates' Court) to refer a medical question to a medical panel for opinion (see s.45(1)) and upon a Conciliation Officer (s.56(6)), but there was no section conferring such a power on the Authority, or a self-insurer or (after Act No.50 of 1993) an authorised insurer. Hence the need, according to the appellants, to imply the power.

120. As has been seen, the argument lost force with the 1997 amendments which, by new ss.93CD(4)(b) and 104B(9), required the Authority, the authorised insurer and the self-insurer in certain limited circumstances to refer a medical question to a medical panel for opinion. The appellants were disposed to concede that relevant power was also conferred in 1994, by a new s.104 which was substituted by Act No.50 of 1994, as one among a fasciculus of new provisions relating to claims management. The new s.104 dealt particularly with claims for compensation under ss.98 and 98A, but on examination, while it required reference of medical questions to a medical panel in certain circumstances, it required such reference to be made, not by the Authority, an authorised insurer or a self-insurer, but by the claimant - something which has no present relevance. It is perhaps interesting to observe in passing that s.67(1) made no reference to a claimant, at any time; nor did it refer to the Administrative Appeals Tribunal which, when exercising jurisdiction under the Act was also expressly empowered by the 1992 amendments to refer a medical question to a medical panel: s.99AB(1).

123. Let it be supposed, then, that the appellants are correct, and that during the period between the 1992 amendments and the 1997 amendments it was necessarily to be implied from the terms of s.67(1) that the Authority and a self-insurer, and after Act No. 50 of 1993 an authorised insurer, had the power to refer medical questions to a medical panel. To my mind that is not a complete statement of the implication. Any statutory power must be - and indeed can be - exercised only for the purpose for which it is conferred: for example, Shrimpton. v. Commonwealth [1945] HCA 4; (1945) 69 C.L.R. 613 at 620, Thompson v. Randwick Corporation [1950] HCA 33; (1950) 81 C.L.R. 87 at 106, Industrial Equity Ltd. v. Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 C.L.R. 649 at 659, 664 and Shop Distributive and Allied Employees Association v. Minister for Industrial Affairs (S.A.) (1995) 183 C.L.R. 552 at 561. For what purpose then was this implied power conferred? Surely it could only have been for the discharge of some function committed to the body or person in question by or under this legislation. The Authority or self-insurer, and from 1993 the authorised insurer, all had powers and duties in relation to the handling of claims for compensation (sometimes involving assessment, sometimes determination) and so much is obvious enough. Examples are legion; and s.104, as substituted in 1994, is but one. If, then, the appellants are right and a power to refer medical questions to a medical panel was to be implied after the 1992 amendments and before the 1997 amendments, I see no reason to doubt that that power, implied as it was, could be exercised by the conferee (be it the Authority, an authorised insurer or a self-insurer) only for the purpose of its discharging some function given it under the Act.

126. Just why such a power to refer medical questions to a medical panel should have been wanted by the Authority, an authorised insurer or a self-insurer is a separate question on which no argument was put to us, and so I pass it by; see and compare s.112 and the power to require a worker to attend for medical examination, a power recognised in s.67(3) since 1992. My point is only that if the power was to be implied then its proper exercise was necessarily limited by the purpose for which it was conferred. In the two cases under appeal, the authorised insurer had completed its consideration and processing of the claims made for compensation; so far as relevant it had rejected them and had notified the worker of its decision, advising him at the same time that, if he wished to establish his claims, he should now proceed by litigation, subject to his first attempting conciliation. Nothing more remained to be done by the authorised insurer in respect of its handling of the worker's claims; the rest was up the courts. Each court had the power in the proceeding commenced before it to refer medical questions to a medical panel, but that did not give any like power to the authorised insurer. Any power the insurer might once have had in that regard was past, if not spent. That is the first reason why, if the appellants were right in contending that power was to be implied from s.67(1), the implication would not avail the authorised insurers in these two cases.

129. The second reason is this. The implication of the power depends, as I have said, upon the Act as it stood after the 1992 amendments and before the 1997 amendments and so, if the implication is to justify an exercise of the power by an authorised insurer after the 1997 amendments, it can be so only if the 1997 amendments can be seen to have made no significant change to the Act, and in particular to those provisions upon which the implication depends. I have said already that in my view the implication cannot be justified with the addition to the legislation in 1997 of specific power (albeit limited) in the Authority, an authorised insurer and a self-insurer to refer medical questions to a medical panel. And that conclusion is simply reinforced by another critical change that was made to the legislation at the same time. I refer to the amendment of s.68 to include subs.(4).

132. When the 1992 amendments conferred relevant power (to refer medical questions to a medical panel) expressly upon a Conciliation Officer and the County Court (and thus the Magistrates' Court), the opinion of the medical panel was made pretty well conclusive. Thus in the first case by s.56(7) the opinion "must be accepted by the parties as conclusive" and, in the second, by s.45(1)(c) the opinion on the question referred was to be "adopted by the Court as the answer to that question". That was the position, too, in the Administrative Appeals Tribunal: see s.99AB(1)(c). There was then no subs.(4) in s.68, for that subsection was introduced by the 1997 amendments. It provided:-

"(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medial Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

I must say that this seems to me a most extraordinary provision, appearing as it does to make conclusive, for all purposes it would seem, the opinion of a medical panel on a medical question, no matter when obtained or by whom. This very consequence can only cast a very great burden on those who would frame such questions and on those who would answer them, but that is not of present concern; nor is it of present concern to ask whether all persons were to be bound, or perhaps only the one who made the reference and others who, though not making the reference, were in some way party, or perhaps privy, to the reference. Neither of these points falls for consideration.

137. What matters now is that, by virtue of the 1997 amendments, if the Authority, an authorised insurer or a self-insurer did refer a medical question to a medical panel, the opinion thereby obtained was binding, at least in the main and even in later court proceedings. That was altogether new. It was perhaps understandable readily enough that the opinion of a medical panel should be binding when obtained by the Court, the Tribunal or a conciliation officer; for in each case there would presumably have been parties before the Court, the Tribunal or the conciliation officer who might sensibly be treated as bound. But the same was not so evident when the opinion was being obtained by the Authority, an authorised insurer or a self-insurer (as witness perhaps the two cases under appeal), and that in itself made it particularly important, in the context of the new s.68(4), to be as clear as possible about the circumstances and conditions under which the Authority, an authorised insurer or a self-insurer was authorised by this legislation to refer medical questions to a medical panel. In the light of the power derived from the requirements made of each of these three by the 1997 amendments, the Act as then amended could not fairly be said to require the implication of any further or additional power in that regard - and particularly a power which could be exercised in unspecified circumstances, under unspecified conditions and towards an unspecified result. If, as the appellants contended, such a power might have been implied before the 1997 amendments (and as to that I express no opinion) quite plainly it could not be implied after them. I think that the introduction of s.68(4) put that conclusion beyond argument. Ironically, it may well have been the very introduction of s.68(4) that led insurers to see some advantage in claiming for themselves a general power to refer medical questions to a medical panel, a power which, it seems from something said by their counsel, was probably of little or no interest to them hitherto.

141. It is for these reasons that I agree with Tadgell, J.A. that these appeals should be dismissed.

146. I agree that the appeals should be dismissed for the reasons stated by Tadgell and Phillips, JJ.A.